March 1996

Judge Natalie Baskin

Trial lawyers and their clients have lost a great friend with the passing of Judge
Natalie Baskin of the Third District Court of Appeal. Judge Baskin sat on that court for
almost my entire career. She wrote many important opinions, including the Third
Districts decision in Fabre, later unfortunately overturned by the Supreme Court. I
will miss her quiet dignity, her compassion, and her firm stand for individual rights,
access to court, and due process of law.

Fundraiser for Legal Services of Greater Miami

Once again the Dade County Trial Lawyers Association is joining with twenty other
voluntary bar associations to raise money for Legal Services of Greater Miami, Inc. Legal
Services provides free legal assistance to poor people in civil cases. They have lost
about one third of their funding in the recent budget cuts, and expect to lose more. They
desperately need our help. The event will be a cocktail party and silent auction, on May
23, at the beautiful Hotel Intercontinental, which is generously donating the room and the
food. You will be receiving invitations next month. I hope to see you there.

Additur/Remittitur

Airstar, Inc. v. Gubbins
21 Fla. L. Wkly. D477 (Fla. 4th DCA 1996)

The trial court should not have granted an additur under §768.043 where there was a
zero verdict and there was evidence from which the jury could have found that the
plaintiffs condition was due to a previous accident or to old age. The additur
statute does not allow the court to sit as a seventh juror with veto power. (This is the
statute providing for remittitur and additur in actions arising out of the operation of a
motor vehicle).

Poole v. Veterans Auto Sales
21 Fla. L. Wkly. S69 (Fla. 1996)

The court declines to determine whether §768.74, the general remittitur/additur
statute, is constitutional under article I, §22 of the Florida Constitution; however, the
court notes that the statute should not alter the longstanding principles applicable to
granting new trials on damages. The trial judge is still not allowed to sit as a seventh
juror or to substitute his factual determinations for those of the jury.

Argument -- Improper

A new trial was required in a products liability case where the defense in closing told
the jury that the plaintiff had settled with the manufacturer, even though the trial court
gave a curative instruction and the plaintiff did not move for mistrial. Moreover, the
defense gave an improper closing argument which injected personal opinion, accused
plaintiff of perpetrating a fraud on the court and on the jury, suggested that the
plaintiffs expert who testified by deposition did not bother to testify in person
because his opinion was so ludicrous, and compared facts in the case to his own personal
experience.

The panel opinion found fundamental error in a closing argument in which the defense
told the jury that a verdict for the plaintiff would end hog hunting in Okeechobee County
and subject them to condemnation in their community. There was also a jury misconduct
issue, discussed below. The denial of rehearing en banc contains a powerful debate in
concurring and dissenting opinions about when an improper argument by counsel constitutes
fundamental error. Judge Stones concurrence cites Borden v. Young, 479
So.2d 850 (Fla. 3d DCA 1985), rev. denied, 488 So.2d 832 (Fla. 1986), urging more control
by trial judges over the argument of counsel. Judge Farmer, in dissent, cites LeRetilley
v. Harris, 354 So.2d 1213 (Fla. 4th DCA), cert. denied, 359 So.2d 1216 (Fla. 1978) for
a more limited judicial role, allowing reversal only when the arguments "were of such
sinister influence as to constitute irreparable and fundamental error", striking at
substantial justice or fundamental rights. He urges skepticism when the appellant
wasnt bothered enough at trial to object.

The DCAs are in great conflict over this issue, which ultimately will have to be
decided by the supreme court. See Judge Altenbernds opinion on Hagan v.
Sun Bank, 21 Fla. L. Wkly. D212 (Fla. 2d DCA 1996).

Default

It was error to refuse to set aside a default which was "improperly secured
without notice after the plaintiff became aware that the defendant was or would be
represented by counsel and desired actively to defend the case."

Debello v. Faske
21 Fla. L. Wkly. D467 (Fla. 3d DCA 1996)

Dont get too excited if your opponent doesnt show up for trial. The trial
judge erroneously defaulted the defendant when he failed to show up at the beginning of
the trial. Even if the defendants absence is not excusable, the plaintiff must be
put to his proof against a defendant who has answered.

Economic Loss Rule

The plaintiff, a gas station operator, contracted with the defendant to remove and
replace the gas stations underground tanks. The contract provided that the defendant
would not be liable for any incidental damages. The defendant was negligent, resulting in
contamination of groundwater which the plaintiff had to expend money to clean up. The
plaintiff sued the defendant for negligent performance of the contract. The court held
that the claim was barred by the economic loss rule. The plaintiff "may not recover
in tort purely economic losses in the form of contractually delegated clean-up costs in
the absence of evidence of personal injury or independent property damage." (Im
not sure why the contamination of the surrounding area does not qualify as independent
property damage). I think this case relies heavily on the fact that the contract
specifically allocated such risks.

The plaintiff, a boat builder, sued a dealer for damages arising from the dealers
sale of defective resin. The dealer sued the distributor for contribution. The court held
that the rule does not bar claims for fraud in the inducement. However, the court held
that other tort claims, including negligent misrepresentation, deceptive and unfair claims
practices, and negligence were barred.

The court held that the plaintiffs use of the resin to make a finish for boats
which was unusable did not satisfy the requirement of damage to other property which would
take the case out of the bar of the economic loss rule.

The resin sellers claim against the distributor is limited to its contract
remedies, which clearly limited the distributors liability to the costs of the goods
sold.

As it did in TGI Development v. CV Reit, Inc., 665 So.2d 366 (Fla. 4th DCA
1996), the court certified conflict with Woodson v. Martin, 663 So.2d 1327 (Fla. 2d
DCA 1995), which is currently pending in the Supreme Court.

ERISA

ERISA does not preempt an action for legal malpractice regarding professional advice
concerning the requirements for federal income tax benefits with regard to funds
distributed from an employee pension plan. The court notes that the case law regarding
ERISA preemption is a mess. This case has a good collection of the various decisions
attempting to ascertain the scope of ERISA preemption. The court also states its
reluctance to allow preemption where ERISA itself would provide no remedy and thus the
defendants would be immunized from all liability for tortious conduct which caused damage
to the plaintiff.

Excessive Force

City of Miami v. Sanders
21 Fla. L. Wkly. D463 (Fla. 3d DCA 1996)

The court refuses to recognize a cause of action for negligent use of excessive force
for injuries resulting from a lawful arrest. The only cause of action for excessive force
in a lawful arrest is battery. Law enforcement officers have a complete defense to an
excessive force claim if the officer "reasonably believes [the force] to be necessary
to defend himself or another from bodily harm while making the arrest." §776.05(1),
Florida Statutes.

However, the court recognizes that in a proper case a separate negligence claim based
on a distinct act of negligence may be brought against a police officer in conjunction
with a claim for excessive use of force.

Experts -- discovery

This one paragraph opinion appears to be about discovery regarding defendants
medical experts. The court held that the plaintiff is entitled to discovery of computer
printouts readily available from State Farm. However, the experts 1099 forms are not
discoverable.

Fabre

The court, on motion for clarification, takes out some dicta that defendants were using
to argue that a defendant who had gotten out on a summary judgment finding no liability
could still go on the verdict form.

The court now expressly holds that "If a defendant wants a Fabre defendant
on the verdict form, the defendant must see to it that there is legally sufficient
evidence in the record from which the jury can find that the Fabre defendant was at
fault. If there is no such evidence, the defendant is not entitled to have the Fabre
defendant placed on the verdict form. Again, if the Fabre defendant is exonerated because
there is no evidence of fault, that defendant does not go on the verdict
form." (emphasis in original)

Therefore, a defendant has standing to appeal a summary judgment in favor of a
codefendant.

This decision was reached after an extraordinary effort by Joel Perwin to appear
as an amicus on behalf of the Academy after the decision had already been written. Joel
filed a motion for leave to appear and a motion for clarification, both of which the court
granted.

A defendant who settled was erroneously left off the verdict form. The jury found
against the remaining defendant. The court held that a new trial was required, but that
the evidence would be limited to the issue of the negligence, if any, of the non-party.
The jury will be instructed that as a matter of law, the defendant was negligent, and that
it should determine whether the nonparty was also at fault and, if so, whether his
negligence was a legal cause of damage to the plaintiffs. If so, the jury will be
instructed to apportion the fault. I dont understand how the jury can make an
apportionment without also receiving evidence on the fault of the defendant, and I hope
the opinion is clarified.

Cohen v. Richter
21 Fla. L. Wkly. D347 (Fla. 4th DCA 1996)

This case implements Wells v. Tallahassee Memorial, 659 So.2d 249 (Fla. 1995).
The trial court reversed a judgment for application of a setoff in accordance with the Wells
formula. Briefly stated, under Wells, the following steps must be taken:

1. The settlement must be apportioned between economic damages and noneconomic damages
in the same proportion as the jury did in the verdict.

2. That portion of the settlement that constitutes economic damages is set off against
the economic damages portion of the verdict.

3. As to noneconomic damages, the plaintiff gets whatever portion is attributable to
the defendant in the verdict with no setoff. For example, if the jury finds a particular
defendant 90 percent liable, the plaintiff get a judgment for 90 percent of the
noneconomic damages against that defendant. There is no setoff against that amount.

The court in Cohen reversed a judgment for application of the Wells
formula, noting that Wells had not been decided at the time of the trial
courts decision.

Thus, Cohen stands for the proposition that Wells applies retroactively
to cases that were in the pipeline at the time it was decided.

Cohen also deals with the relationship between the Fabre and Wells
decision and the offer of settlement statute, §45.061 (now repealed; see §768.79). The
appellate court instructed the trial court to consider, whether in light of the reduction
of the judgment by the setoff, the defendant unreasonably rejected the plaintiffs
offer of settlement.

Note that, unlike §45.061, under §768.79, the reasonableness of the rejection is
relevant only to the amount of the fees, not to whether they should be awarded at all. TGI
Fridays v. Dvorak, 20 Fla. L. Wkly. S436 (Fla. 1995). However, this case can be used
for the proposition that the setoff should be considered before deciding whether an offer
has been unreasonably rejected.

The offer of judgment statute and rule keep getting more and more complicated. Now, we
have to take into account setoffs for settlements with joint tortfeasors in determining
whether to accept or reject an offer of judgment.

Insurance -- Misrepresentation

It was error to direct a verdict against the insured pursuant to §627.409, concerning
misrepresentations, where the trial court failed to consider a policy provision that
allowed the insurer to void the policy only for intentional misrepresentations.

Insurance -- UM

Hassen v. State Farm
21 Fla. L. Wkly. S102 (Fla. 1996)

In 1992, the legislature amended §627.727(6). The amendment requires a UM carrier
which refuses permission for the insured to settle with the tortfeasor to either pay the
amount of the tortfeasors settlement offer or lose its subrogation rights. The
Supreme Court held that the amendment is substantive and does not apply retroactively to a
claim under a UM policy executed prior to the amendments effective date.

Atlanta Cas. Co. v. Evans
21 Fla. L. Wkly. D496 (Fla. 1st DCA 1996)

The plaintiffs husband executed a valid rejection of uninsured motorist coverage.
Subsequently they were divorced. The plaintiff then requested the insurer to delete her
former husband as a named insured and to change her name on the policy, but to keep the
same coverage. After that change, she was injured in an action with an
uninsured motorist. The court held that the former husbands rejection was valid at
the time it was executed, and that, since the changes in the policy did not affect the
bodily injury liability limits, the insurer was not required to again offer uninsured
motorist coverage to the plaintiff absent a written request from her. Therefore, the
husbands rejection was still valid and there was no UM coverage.

Allstate Ins. Co. v. Thomas
21 Fla. L. Wkly. D423 (Fla. 4th DCA 1996)

There was no uninsured motorist coverage where the court determined that the passenger
was not "occupying" the insured vehicle at the time he was hit. The passenger
had been sent by his employer to assist a disabled truck by unloading the disabled truck,
putting the cargo on the insured truck and carrying it on to its destination. At the time
he was hit by a third, uninsured vehicle, he was standing near the disabled vehicle. The
court holds that the appropriate test is the "relationship between the person and the
[insured] vehicle, obviously of time and in distance with regard to the risk of alighting,
that determines the specific coverage."

I have been retained to handle the motion for rehearing. I have moved for rehearing en
banc, arguing that other courts have adopted a different test, focusing on the injured
persons intent with respect to the insured vehicle. See Industrial Fire &
Cas. Ins. Co. v. Collier, 334 So.2d 148 (Fla. 3d DCA 1976); State Farm v. Yanes,
447 So.2d 945 (Fla. 3d DCA 1984); Fidelity & Casualty Co. of New York v. Garcia,
368 So.2d 1313, 1315 (Fla. 3d DCA), cert. denied, 378 So.2d 344 (Fla. 1979) (whether
"the insured shows an intention, evidenced by an overt act based on that intention,
to undertake a new direction or activity".)

A specialty policy issued for a reduced premium and providing limited coverage for an
antique car with limited highway usage is not required to provide UM coverage for
accidents not involving the insured antique car. The insureds son, a resident
relative, was injured by an uninsured motorist while in a different car. The court upheld
a policy endorsement that limited uninsured motorist coverage to claims of insureds who
were actually occupying the insured antique car at the time of the accident. The court
reaches this result because the car is not a "family automobile", distinguishing
Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229 (Fla. 1991). The insured
bought a policy called an "Antique Automobile Insurance Policy" which insured
only the antique car. Most of the premium was allocated to collision coverage. Even though
the limitations in the policy were more restrictive than those allowed by §627.727(9),
the court upheld them.

Jury Discrimination

Speights v. State
21 Fla. L. Wkly. D472 (Fla. 4th DCA 1996)

After the defendant in a criminal case struck a white male from the jury, the state
raised a challenge under State v. Neil, 457 So.2d 481 (Fla. 1984), arguing that the
strike was racially motivated. The defendant explained that he struck the juror because
the juror had sat on eighteen cases including a recent murder trial. The defense believed
that his experience made him a potential leader whose vote might be given greater weight
by other jurors. The court upheld the plaintiffs right to challenge on this basis.
First, the court noted that the explanation does not have to be persuasive or plausible,
but only facially valid. Second, possible leadership qualities based on past jury
experience is a valid racially neutral reason. The court recognizes that trial lawyers
dont want any one juror to have a disproportionate say in the verdict.

Jury Misconduct

One of the jurors had a brother who was an employee of the defendants liability
insurer. He had two conversations with his brother during the trial, including one in
which he told his brother that the defense lawyer was eating the plaintiffs
lawyers lunch. The court held that these contacts constituted overt acts which
compromised the integrity of the process, and that a new trial was required.

Limitations

The two year statute of limitations for professional malpractice in §95.11(4) did not
apply to an action against an attorney who allegedly was negligent only while acting as an
escrow agent. An escrow agent is not a "professional" under the statute because
a four year college degree is not required to serve as an escrow agent.

Ding v. Jones
21 Fla. L. Wkly. D382 (Fla. 2d DCA 1996)

This case was a wrongful death action. The plaintiffs wife was killed, and he was
injured, in an accident with a truck. The truck driver sued the plaintiff. The plaintiff
counterclaimed for wrongful death, and also brought a cross claim against the leasing
company which leased the car to him and a third party claim against the owner of the
truck.

The court held that the truck driver had waived the statute of limitations as to the
plaintiff by suing him. Thus, the plaintiff could counterclaim against the truck driver
for wrongful death of his wife, but only for his own injuries as a survivor, and not for
any damages accruing to the estate. The court also held that the cross-defendant and third
party defendant had valid statute of limitations defenses which were not waived.

Med Mal -- Birth Related Neurological Injury

Sections 766.301-316, Florida Statutes, set up the Birth-Related Neurological Injury
Compensation Plan to provide a no-fault method of compensating such injuries to new-born
infants (providing limited benefits). It provides the exclusive remedy for such claims.
The Supreme Court holds that when the plaintiff brings a malpractice action and the
defendant raises the statutes as a defense, the court has jurisdiction to determine
whether the claim is covered by the statutes, and therefore whether the health care
provider is immune from suit.

This means that you can sue the health care provider and have the court determine the
immunity issue. But watch out! While the statute of limitations for the tort action is
tolled while an administrative proceeding is pending, the statute of limitations is not
tolled for filing an administrative proceeding while the tort action is pending. As the
court pointed out, "plaintiff faces the risk that the time for filing a NICA claim
may expire while he is unsuccessfully litigating the exclusivity of the remedies afforded
by the plan."

Med Mal -- Presuit

Pozniak v. Boswell
21 Fla. L. Wkly. D600 (Fla. 5th DCA 1996)

The court per curiam affirms the dismissal of the plaintiffs case with prejudice
for failure to comply with presuit discovery. Judge Dauksch, dissenting, says that
the attorney claims he was about to give the discovery when he received the
defendants notice of rejection. The trial judge should have exercised his discretion
to impose some other sanction such as requiring the plaintiffs attorney to provide
full discovery at his own expense and to delay for a short time the requirement of any
action on the defendants part until that was completed.

I believe Judge Dauksch is right. The Supreme Court has made it clear that the
malpractice statute is supposed to filter out frivolous claims and promote settlement, not
create obstacles for legitimate claims. See Patry v. Capps, 633 So.2d 9 (Fla.
1994). As Judge Dauksch notes, the statute is "rather one-sided," and the
courts are enforcing it in a one-sided manner. Compare Karr v. Sellars, 21 Fla. L.
Wkly. D186 (Fla. 4th DCA 1996) (reversing order striking defendant doctors pleadings
for failure to include a corroborating affidavit with his rejection letter).

Offer of Judgment

In a declaratory judgment action in which the plaintiff also sought damages, the offer
of judgment statute applied. The fact that the plaintiffs demand for judgment was
improperly titled as an offer of judgment does not defeat the true character of the
document.

In an action against a neighboring landowner for pollution of the plaintiffs
lands, the trial court erroneously added to the amount of the judgment the monetary value
of injunctive relief in determining whether the plaintiffs recovery exceeded the
offer by more than 25 percent.

Service of Process

Maher v. Best Western Inn
21 Fla. L. Wkly. D443 (Fla. 5th DCA 1996)

The court per curiam affirms an order dismissing a complaint against one of the
defendants for failure to serve within 120 days under Fla. R. civ. P. 1.070(i). The
concurrence and dissent make clear that, although the plaintiff hired an investigator who
was unable to find the defendant, the defendant was in fact listed in the phone book the
whole time. Part of the problem may have been that the plaintiff did not move for an
extension until after the 120 days had run.

West v. State Dept. of HRS
21 Fla. L. Wkly. D352 (Fla. 1st DCA 1996)

It was error to dismiss plaintiffs complaint against HRS for failure to serve
process on the Dept. of Insurance within 120 days. See §768.28(7), requiring service on
the agency you are suing and on the Dept. of Insurance.

Sovereign Immunity

The trial court properly granted a new trial to a patient injured by another patient at
the Florida State Hospital. The trial court erroneously struck the plaintiffs
allegation that he should not have been placed in the unit where he was attacked because
it was contrary to hospital policy. The court distinguished Dept. of HRS v. B.J.M.,
656 So.2d 906 (Fla. 1995), holding that HRS funding decisions are shielded by sovereign
immunity, because here the plaintiff did not claim that staffing at the hospital was
inadequate, but that the placement policy in effect at the time of the attack was
violated. See also HRS v. Whaley, 574 So.2d 100 (Fla. 1991) (allowing claim by
incarcerated juvenile who was attacked by fellow inmate in his cell).

The court also held that it was error to refuse to allow the plaintiff to rebut a
hospital employees testimony that a specific page of the policy had not been
approved by the hospitals administration, which conflicted with the hospitals
response to plaintiffs request for production of a "full and complete legible
copy of policy and procedure" in effect at the time of the attack.

Smart v. Monge
21 Fla. L. Wkly. D455 (Fla. 2d DCA 1996)

A letter to the sheriffs legal advisor which stated that the attorney was
representing the plaintiff in connection with her sons death, and requesting all
available documents concerning the son including any investigation into his death, did not
satisfy the notice requirement of §768.28(6) because it did not specifically state the
intent to file a claim. The court holds that at a minimum the letter must identify the
incident and notify the agency of a demand for compensation of the injury.

Workers Comp Immunity

Venezia v. Egan
21 Fla. L. Wkly. D555 (Fla. 5th DCA 1996)

This was an action by an employee of a subcontractor against the owner and operator of
a crane which had been leased to the subcontractor. The plaintiff was injured as a result
of the crane operators negligence while the plaintiff was giving hand signals to the
crane operator. The court reversed a summary judgment that had been granted to the
defendants on the basis of workers comp immunity under a borrowed servant theory.
(The defendants contended that they were immune because the crane operator was the
borrowed servant of the subcontractor.)

The court held that there is a presumption that the operator who was furnished with the
leased crane was the general employee of the owner of the crane at the time of the
accident. To overcome this presumption and make him the borrowed servant of the
subcontractor, the defendants would have to show that a contract for hire existed between
him and the subcontractor, and that the subcontractor had the power to control the details
of the operators work. Absent such a showing, the presumption prevailed and the
defendants were not entitled to summary judgment.

The plaintiff, a paid professional Marion County fire fighter, was assigned by the
County to work at another fire station, which was otherwise all volunteer. While working
at the volunteer station, he was called to assist fire fighters from a second volunteer
fire department in fighting a fire. He was injured by a blast of water which knocked off
his protective breathing gear, causing permanent injuries. He sued the second volunteer
fire department. The court held that the second volunteer fire department was not entitled
to workers comp immunity. Under the contracts between the fire departments, the
plaintiff remained an employee of the county, while the firefighters who worked for the
second volunteer fire department worked for it, not for the county. See §440.02(15)(a)
(applying to firefighters generally); §440.02(12)(d)3.a. (excluding volunteers to private
nonprofit corporations from the definition of employee).